Because the 9th Circuit reverses so many of the immigration (BIA) cases, a few examples will explain the absurd excuses the court accepts to allow people to remain in the United States. Instead of requiring an entrant to establish the right to live in the United States, the 9th Circuit imposes the burden of proof to exclude or deport someone on the government.
The Supreme Court again reversed the 9th Circuit in an immigration case that seemed to foreshadow the result in the same sex marriage case, but Justice Kennedy made the difference with his flowery dissent. In Kerry v.Din, 135 S.Ct. 2128 (2015) the case made very little media attention but the majority decision contained an excellent summary of the Due Process Clause in the Constitution.
Justice Scalia traces the origin of the Due Process Clause back to Magna Carta and the early English commentators. Din, a female living as a citizen in the United States, wanted her husband living in Afghanistan, and a member of the Taliban, to live with her in the United States. According to Din, her marriage included a “liberty interest” arising from implied fundamental rights warranting his entry. Here is an excerpt from Justice Scalia’s majority opinion:
“I think it worth explaining why, even if one accepts the textually unsupportable doctrine of implied fundamental rights, Din’s arguments would fail because extending constitutional protection to an asserted right or liberty interest … place[s] the matter outside the arena of public debate and legislative action,” Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997), and because the “guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended,” Collins v. Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992), ‘[t]he doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field’. Accordingly, before conferring constitutional status upon a previously unrecognized ‘liberty’ we have required ‘a careful description of the asserted fundamental liberty interest,” as well as a demonstration that the interest is ‘objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [it was] sacrificed.” Glucksberg, supra, at 720–721, 117 S.Ct. 2258 .
U.S. v. Raya-Vaca, 771 F.3d 1195 (9th Cir. 2014): Raya-Vaca was deported 6 times from the United States and was now in expedited removal proceedings. According to the 9th Circuit, the IJ did not inform Raya- Vaca of the proceedings filed against him, and that failure violates Due Process. Raya-Vaca, having been deported 6 times, should have little doubt of his awareness of the proceedings and the consequences . ” No”, said the court. Due Process occurred, the all – purpose 9th Circuit rule that knows no boundaries and invoked by the 9th Circuit to impose public policy.
Almanza v. Holder, 771 F.3d 1184 (9th Cir 2014): Almanza was convicted under California Vehicle Code 10851(a) (permanently or temporarily taking a motor vehicle from the owner without permission). The statute is in the alternative and the record did not reflect which kind of theft was applicable to Almanza. The code section is one of moral turpitude for immigration purposes and subject to deportation of an alien if the vehicular theft is “permanent,” but not if “temporary.” But the record does not show which alternative. So, the 9th Circuit panel remanded to the IJ to find out.
Why a remand? Let the alien submit the record to establish the theft was “temporary.” The lawyer probably didn’t know the procedure and the 9th Circuit panel invented its own rule and provided the explanation.
Talk about academic hair splitting. Why should an illegal alien commit a crime of theft and stay in this country based on statutory quibble or without furnishing the court with the record?
For other immigration cases go to earlier pages.